Citation Nr: 9817892
Decision Date: 06/10/98 Archive Date: 06/22/98
DOCKET NO. 95-24 112A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for
additional disability as the result of treatment by the
Department of Veterans Affairs.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The veteran served on active duty from February 1959 to March
1962. This matter comes to the Board of Veterans’ Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that due to the lack of proper testing
and treatment at a VA facility, his heart disability is
additionally disabling and that therefore compensation is
warranted for the lack of proper treatment by VA.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that on the issue of entitlement to
benefits pursuant to 38 U.S.C.A. § 1151 for additional
disability as the result of treatment by VA, the veteran has
not met his initial burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
the claim is well grounded.
FINDING OF FACT
The claim of entitlement to benefits pursuant to 38 U.S.C.A.
§ 1151 for additional disability as the result of treatment
by VA is not plausible.
CONCLUSION OF LAW
The claim of entitlement to benefits pursuant to 38 U.S.C.A.
§ 1151 for additional disability as the result of treatment
by VA is not well grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question to be answered is whether the veteran
has presented evidence of a well-grounded claim, that is, a
claim which is plausible and meritorious on its own or
capable of substantiation. If he has not, his appeal must
fail. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet. App. 78 (1990). The Board finds that the
veteran's claim for benefits pursuant to 38 U.S.C.A. § 1151
for additional disability as the result of treatment by VA is
not well grounded, and there is no further duty to assist the
veteran in the development of his claim.
Where a determinative issue involves medical causation,
competent medical evidence to the effect that the claim is
plausible is required to establish that the claim is well
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). As
stated above, in Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990), the Court defined a well-grounded claim as a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
38 U.S.C.A. § 5107(a). The test is an objective one which
explores the likelihood of prevailing on the claim under the
applicable standards. See Gilbert v. Derwinski, 1 Vet.App.
49 (1990). Although the claim need not be conclusive, it
must be accompanied by evidence. Furthermore, the evidence
must justify a belief by a fair and impartial individual that
the claim is plausible. 38 U.S.C.A. § 5107.
In Gardner v. Derwinski, 1 Vet.App. 584 (1991), the United
States Court of Veterans Appeals (Court) invalidated 38
C.F.R. § 3.358(c)(3), on the grounds that that section of the
regulation, which included an element of fault, did not
properly implement the statute. The provisions of 38 C.F.R.
§ 3.358, excluding section (c)(3), remain valid. See Brown v.
Gardner, _U.S._, 115 S.Ct. 552, 556 n.3 (1994). In pertinent
part, 38 U.S.C.A. § 1151 provides that where any veteran
shall have suffered an injury, or an aggravation of an
injury, as the result of hospitalization, medical or surgical
treatment, not the result of such veteran's own willful
misconduct, and such injury or aggravation results in
additional disability or death, compensation shall be awarded
in the same manner as if such disability or death were
service-connected.
38 C.F.R. § 3.358, the regulation implementing that statute,
provides, in pertinent part, that in determining if
additional disability exists, the beneficiary's physical
condition immediately prior to the disease or injury on which
the claim for compensation is based will be compared with the
subsequent physical condition resulting from the disease or
injury. As applied to medical or surgical treatment, the
physical condition prior to the disease or injury will be the
condition which the specific medical or surgical treatment
was designed to relieve. Compensation will not be payable
for the continuance or natural progress of disease or
injuries for which the hospitalization, etc., was authorized.
In determining whether such additional disability resulted
from a disease or injury or an aggravation of an existing
disease or injury suffered as a result of hospitalization,
medical or surgical treatment, it will be necessary to show
that the additional disability is actually the result of such
disease or injury or an aggravation of an existing disease or
injury and not merely coincidental therewith. 38 C.F.R. §
3.358 (b), (c). 38 C.F.R. § 3.358 (c)(3)) now provides:
Compensation is not payable for the necessary consequences of
medical or surgical treatment or examination properly
administered with the express or implied consent of the
veteran, or, in appropriate cases, the veteran's
representative. "Necessary consequences" are those which are
certain to result from, or were intended to result from, the
examination or medical or surgical treatment administered.
38 C.F.R. § 3.358 (c) (3).
The record shows that in November 1986, the veteran was
treated at Wayne Hospital after being admitted for acute
substernal pain with nausea and vomiting, diaphoresis and
mild dyspnea. It was reported that the veteran had no
previous history of heart disease. The pain was described
upon admission as a dull ache which radiated to the jaw. The
impression was, acute inferior wall MI. In December 1986,
the veteran was treated at a VA facility for further
evaluation after having an episode of chest pain and
diaphoresis with weakness. He underwent several tests. A
MUGA scan showed left ventricular ejection fraction at rest
was 45% and right ventricular ejection at rest was 24%; there
was hypokinesis of the inferior wall of the left ventricle
and the right ventricle was diffusely hypokinetic. The
impression was, abnormal ventricular function study at rest
with abnormal right and left ventricular functions. An
echocardiogram showed no valvular deformities, and a cardiac
catheterization showed inferobasal left ventricular akinesia,
total occlusion of the right coronary artery, mild left
anterior descending plaque disease and normal left
circumflex. The catheterization impression was: coronary
artery disease with total occlusion of the right coronary
artery and mild plaque disease of the left anterior
descending artery with inferobasal akinetic left ventricular
dysfunction. The veteran had STT changes in EKG consistent
with inferolateral wall ischemia. A Thallium stress test was
to be performed in two weeks. The diagnoses were; coronary
artery disease; and status post inferior wall myocardial
infarction on 11-13-86.
In January 1987, the veteran underwent a stress Thallium
test. He achieved 90 percent of predicted heart rate. The
study was terminated due to fatigue. The finding was
negative stress test for ischemia. The Thallium results
found a defect in the left ventricle in the apical,
inferoapical, inferior, and inferoposterior walls of the left
ventricle.
In May 1987, the veteran was admitted to Wayne Hospital due
to substernal chest pain that began when he was driving home.
The pain radiated into his left shoulder and was not relieved
by Nitroglycerin. An EKG showed a sinus rhythm with large Q
waves in 2, 3 and AVF consistent with his previous inferior
wall myocardial infarction and T wave inversion in minor ST
segment approximately 1 mm. elevation in his 2 through V6
suggesting either an evolving anterior wall myocardial
infarction or left ventricular ischemia. The veteran was
stabilized and transferred to a VA facility.
In a May 1987 letter, James O. Armacost, D.O. stated that the
veteran had been transferred to a VA facility in May 1987,
where he stabilized without signs of acute injury to the
heart.
The veteran was examined by VA in August 1987. He reported
having some angina. Examination showed an occasional skipped
beat. It was noted that he used Nitroglycerin 3 times a day
due to chest pain. The diagnosis was, residuals of heart
disease with angina—this includes arteriosclerotic heart
disease and coronary artery disease.
In September 1991, the veteran was admitted to Good Samaritan
Hospital for evaluation and treatment after experiencing
substernal chest discomfort and chest tightness which
radiated to both arms and also having shortness of breath and
palpitations. He underwent a cardiac catheterization and a
myocardial revascularization times four. In January 1992, VA
outpatient records show that the veteran was seen to review
his laboratory tests. It was noted that he was doing “ok”
with no chest pain. In a February 1992 letter from Donald F.
Hammer, M. D. to Dr. Armacost, it was reported that the
veteran had been readmitted to the Good Samaritan Hospital in
February 1992, for a possible splenic infarction. VA
outpatient treatment records show that in February 1992, the
veteran gave a history of recent private hospitalization and
it was noted that he was doing “ok” now.
The veteran testified at a personal hearing at the RO in
December 1995. He related that he had been treated in
November 1986 for two myocardial infarctions at the Wayne
Hospital and was subsequently admitted to a VA hospital that
same month. He reported that he was not told by VA at that
time that surgery should be considered. He reported that
when he had his surgery in 1991, he was told that if the
surgery had been performed in 1987, he would probably still
be able to work. He argued that VA had performed all the
diagnostic tests in 1986 but failed to take the proper
procedure to properly treat him at that time. He reported
that after his 1991 surgery his condition improved, and it is
argued that if VA had recommended or performed the procedure
earlier, he would have been better off. A complete
transcript is of record.
In January 1996, VA received a letter from Dr. Hammer. He
stated initially that the purpose of the letter was to
outline the veteran’s clinical history, specifically
pertaining to his history of ischemic heart disease,
beginning in 1986. It was noted that his initial involvement
with the veteran began in late September 1991. Dr. Hammer
discussed the treatment of the veteran to February 1992.
In May 1996 the RO received two typewritten letters sent by
the veteran. One letter dated in May 1996 was signed by Dr.
Armacost and the other, dated in April 1996 was not signed.
The April 1996 unsigned letter contained a history of the
veteran’s treatment and a statement indicating that if the
veteran had had angioplasty or coronary artery bypass surgery
earlier, he might have avoided extensive damage to his heart.
This statement was crossed out and the letter was unsigned.
The veteran wrote on the letter that the letter contained
what the physician wanted to say but that government
guidelines kept him from stating such. The May 1996 letter,
which was signed by Dr. Armacost contained the same history
as the April 1996 letter; however no opinion was offered.
Additionally it was stated in that letter that “the patient
feels that his outcome was compromised by delays encountered
when working through the VA system. I explained to him that
I found it somewhat difficult for me to pass judgment in
terms of what might have been had the treatment been
different”.
The veteran's claim that his cardiac disability was not
properly treated by VA and that this caused the disease to
increase in severity, is a medical question. Competent
medical opinion is therefore required to establish a well
grounded claim. Grottveit v. Brown, 5 Vet.App. 91 (1993).
As a lay person, the veteran is not competent to offer a
medical opinion. Espiritu v. Derwinski, 2 Vet.App. 492
(1992). While the veteran believes that if VA had treated
him in a different manner, his disability would not have been
so severe, he has presented no competent medical evidence to
support his assertions. The statement from Dr. Hammer is
merely a recitation of the veteran’s clinical history, the
April 1996 unsigned and crossed out statement has no
probative value, and the signed statement by Dr. Armacost
states that he cannot provide an opinion regarding the care
the veteran received at VA. Additionally, there is no
indication in the clinical evidence of record that but for
the treatment by VA, the veteran’s heart disability would not
have been so severe. Absent evidence of any additional
disability which could be associated with VA treatment, the
Board finds the claim is not plausible. Therefore, the Board
finds that the veteran's claim for service connection is not
well grounded.
The veteran is free at any time in the future to submit
evidence in support of his claim. Medical records of
complaints and treatment of his heart disability would be
helpful in establishing a well-grounded claim, as well as
medical opinion with complete rationale, linking any
additional disability with the veteran’s treatment by VA.
Robinette v. Brown, 8 Vet.App. 69 (1995).
ORDER
Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for
additional disability as the result of treatment by the
Department of Veterans Affairs is denied.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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